Beliveau v. Norfolk & Dedham Mut. Fire Ins. Co.

• Decision Date: 14 February 1980
• Docket Number: No. 79-016,79-016
• Citation: 411 A.2d 1101,120 N.H. 73
• Parties: Roger BELIVEAU, Administrator of the Estate of Richard Beliveau v. NORFOLK & DEDHAM MUTUAL FIRE INSURANCE COMPANY and Concord General Mutual Insurance Company.
• Court: New Hampshire Supreme Court

Page 1101

411 A.2d 1101

120 N.H. 73

Roger BELIVEAU, Administrator of the Estate of Richard Beliveau v. NORFOLK & DEDHAM MUTUAL FIRE INSURANCE COMPANY and Concord General Mutual Insurance Company.

No. 79-016.

Supreme Court of New Hampshire.

Feb. 14, 1980.

Lemelin & Cloutier, Manchester (Richard L. Rodman, Manchester, orally), for plaintiff.

Wiggin & Nourie, Manchester (James W. Donchess, Manchester, orally), for defendant Norfolk & Dedham Mutual Fire Ins. Co.

Burns, Bryant, Hinchey, Cox & Shea, Dover (Paul R. Cox, Dover, orally), for defendant Concord General Mut. Ins. Co. BROCK, Justice.

This is a petition for declaratory judgment brought by Roger Beliveau to determine the validity of an exclusion in the uninsured motorist provisions of three automobile liability insurance policies. The Trial Court (Wyman, J.) held that the "household exclusion clause" applied to the facts agreed upon and was not repugnant to the State's uninsured motorist statute, RSA 268:15-a. We affirm.

Richard Beliveau, the plaintiff's son and member of his household, owned an Opel Cadet that was not insured. On March 30, 1976, while Richard was a passenger in his own vehicle, it collided with an automobile owned and operated by Douglas Sharp. As a result of this accident, Richard Beliveau suffered injuries that caused his death. Neither Russell Remillard, the driver of Richard's vehicle, nor Sharp had automobile liability insurance coverage.

In this action, plaintiff alleges that his son's estate is entitled to payment under the uninsured motorist provisions of the three insurance policies that list the plaintiff or his business as the named insured. The first policy was issued by Norfolk and Dedham Mutual Fire Insurance Company to cover a dump truck used in plaintiff's construction business, and is no longer at issue in this appeal. The remaining two policies provided basic automobile liability and property damage coverage, for separate automobiles owned by the plaintiff and were both issued by Concord General Mutual Insurance Company (Concord General). They contain substantially similar uninsured motorist provisions. Under these policies the persons insured are "the named insured and . . . while residents of the same household, the spouse and relatives of either." Concord General claims, however, that its obligation to provide uninsured motorist coverage to plaintiff is limited by exclusions in each policy which plaintiff concedes generally provide that "(t)his insurance does not apply: . . . (b) to bodily injury to an insured while occupying a highway vehicle (other than an insured highway vehicle) owned by the named insured . . . or any relative resident in the same household . . . ."

The trial court ruled that this "exclusion denies coverage to Richard Beliveau." We have found nothing in the agreed statement of facts that would lead us to a different conclusion. "Absent statutory provisions or public policy to the contrary, insurers have a right to limit their liability by exclusions written in terms appropriate to convey their meaning and effect to a reasonable person in the position of the insured." Charest v. Union Mut. Ins. Co., 113 N.H. 683, 686, 313 A.2d 407, 409 (1973).

The question before us is whether the exclusion conflicts with this State's uninsured motorist statute. RSA 268:15-a I requires that:

(n)o (liability insurance) policy shall be issued . . . in this state . . . with respect to a motor vehicle, . . . registered in this state unless coverage is provided . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . . because of bodily injury . . . including death.

Plaintiff contends that the phrase, "persons insured thereunder," encompasses relatives of the named insured who reside in his household while they are passengers in any vehicle, including an uninsured vehicle owned by a member of that household. Concord General takes the position that the statute does not require insurers to provide uninsured motorist coverage for such persons in all situations.

Plaintiff argues that the statute mandates coverage for " 'the protection of persons insured (thereunder)' . . . irrespective of the insured's proprietory and insurance interest in the vehicle he happens to be driving (or occupying)." Vantine v. Aetna Casualty & Surety Co., 335 F.Supp. 1296, 1298 (N.D.Ind.1971). Plaintiff contends that Concord General's exclusion impermissibly constricts the scope of coverage mandated by the statute. A majority of jurisdictions appear to have adopted the plaintiff's position. A. Widiss, A Guide to Uninsured Motorist Coverage § 2.9 (Supp.1978). In many of those jurisdictions, however, the uninsured motorist statutes differ materially from ours. See, e. g., Lowery v. State Farm Mutual Automobile Ins. Co., 285 So.2d 767 (Miss.1973); Allstate Ins. Co. v. Meeks, 207 Va. 897, 153 S.E.2d 222 (1967); Touchette v. Northwestern Mutual Ins. Co., 80 Wash.2d 327, 494 P.2d 479 (1972). The Mississippi statute at issue in Lowery v. State Farm Mutual Automobile Ins. Co., supra at 771, for example, defined "insured" as "the named insured and, while resident of the same household, the spouse of any such named insured and the relatives of either, while in a motor vehicle or otherwise. . . ." Miss.Code...